The Trump prosecutors have a grand jury problem. Where are the defense attorneys?

Let me address a very important and timely matter that, as best as I can tell, has not been addressed by the legal commentariat or, for that matter, defense counsel in the wide-ranging charges against President Donald Trump and his co-defendants.

The Fifth Amendment to the United States Constitution states, in pertinent part, that "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury …"  Is that what happened when Special Counsel Jack Smith and the Biden Department of Justice used the Washington, D.C. grand jury to charge former President Trump for alleged crimes that occurred in Florida in the so-called documents case, clearly using the wrong venue in violation of specific DOJ policy, and then hastily moved the case to a grand jury in Florida?

The protection afforded by a fair grand jury proceeding dates back many centuries to the Magna Carta and was prominently implemented by British and American courts applying Blackstone's legal doctrines. The notion that any grand jury would indict a ham sandwich refers to the usual adoption by grand juries of evidence presented by a prosecutor. It should not eradicate a right that was deemed important enough to be included in the Bill of Rights. The public and the courts must realize that these are accusations crafted and made by the individual prosecutors and not the result of deliberations and subsequent decisions by a group of ordinary citizens.

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Since the Florida grand jurors did not hear the testimony presented to the D.C. grand jury, exactly what did they hear or see to charge the former president and the other defendants?  Was the D.C. testimony read to them? What were they instructed about the D.C. testimony? Were they asked whether they had any questions for the witnesses who testified? Were they instructed on the need to find probable cause as to each of the defendants? Were they instructed on the law? 

The customary procedure in cases of obvious crimes is just to submit an indictment drafted by the prosecutor to the grand jurors and ask them to vote up or down. When the charges are not about an obvious crime and are instead much more complex, such as in the so-called documents case, the constitutional right to be indicted by a grand jury must require more than that. Indeed, the DC grand jury met for many months, heard from many scores of witnesses, was presumably provided with an enormous amount of "evidence" presented to it by the government.  

We already know from the subsequent public record in the court proceedings in Florida that what the government has turned over to the defendants consists of over 1 million documents and 9 months of videotape, which will be used in whole or part during the trial.  

From that, plus the complexity of the law in this matter, the fact that it is a case of first impression, and there are numerous legal and constitutional issues associated with using the Espionage Act against a former president, the Florida grand jury, not having the benefit of seeing and hearing first-hand any of the witnesses, etc., the government would have been required to ensure that, in fact, the Florida grand jury, and not the government, indicted the former president based on probable cause, a requisite for each of the nearly forty counts.    

Although the Federal Rules of Criminal Procedure (Rule 6) impose a secrecy requirement on federal grand jurors, the judge should, now that the indictment has been returned, permit defense counsel to interview the grand jurors and release them from any secrecy obligation. That is the only way to discover, before the defendants are forced to a trial, whether the Fifth Amendment’s obligation has been satisfied.  And, again, given how Smith used the DC venue and a DC grand jury to conduct his very extensive investigation on matters related almost exclusively to events in Florida, this is an especially important issue.

In all four cases involving the indictment of President Trump, the media have repeatedly reported that Trump has "been indicted by a grand jury." The real question is whether the grand juries truly deliberated or simply went through the motions at the direction of the prosecution.  Did a majority vote to accuse Trump and all his co-defendants of the complex crimes alleged in the indictments or was this window dressing for what happened in these secret proceedings.  

Another obvious example is the case in Georgia. The indictment is 98 pages in length and involves over 40 charges.  Moreover, in addition to the individual charges, an umbrella charge of a grand conspiracy, that is a so-called RICO charge, is alleged, involving up to 19 co-conspirators, including the former president.  

This is an extraordinarily complicated factual and legal indictment, putting aside the obvious substantive weaknesses of the case.  And in this case, like the federal documents case, the prosecution has much to answer for.  Recall that on the day the grand jury was to meet to vote on whether to indict, the actual indictment was published by the court clerk on the official website – before the grand jury had even met or voted.  

Later that day, D.A. Fani Willis held a press conference playing up the fact that the 19 defendants who were accused had been charged by named ordinary citizens of the grand jury, although under Georgia law she could have filed the charges without a grand jury endorsing them.  Since she claimed the indictment was the work of the grand jury, the question is whether, in fact, it was. 

From the moment the indictment was posted on the clerk’s official website that morning, Willis moved at a frenzied pace to get an indictment that night.  

Exactly what happened in the grand jury room? What kind of deliberations occurred. Again, the issue is probable cause and whether the defendants’ due process rights were abridged.  

In Georgia, the grand jurors are free to publicly speak.  We saw that earlier when in a prior investigative grand jury, the foreman went on television when its proceedings concluded and would not stop talking about what had occurred among grand jurors, and she did so gleefully. It should not be difficult for defense counsel to get to the bottom of what occurred. 

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In the Manhattan case, when D.A. Alvin Bragg officially filed his indictment, he accompanied it with a prosecutor’s statement that the media accepted as part of "the grand jury indictment."  It was certainly presented that way. The question is whether the grand jurors actually voted on it.  

New York imposes a secrecy requirement on grand jurors, but that requirement makes sense while the grand jury is considering criminal charges. Should it apply to prevent disclosure of how the prosecutor instructed the grand jury on the law and to discover whether the grand jurors did, in fact, consider whether there was probable cause to make the criminal allegations?  And was Bragg’s accompanied statement part of the proceedings?

FILE – Manhattan District Attorney Alvin Bragg (Photo by Lev Radin/Pacific Press/LightRocket via Getty Images)

Finally, in the second federal case supposedly involving January 6, President Trump is not charged with insurrection or sedition, yet when the special counsel, Jack Smith, made his remarks announcing the indictment, nearly half of his statement had no relevance to the charges brought by the grand jury.  He said, in part: 

The indictment was issued by a grand jury of citizens here in the District of Columbia and sets forth the crimes charged in detail. I encourage everyone to read it in full. The attack on our nation’s capital on January 6, 2021, was an unprecedented assault on the seat of American democracy. As described in the indictment, it was fueled by lies. Lies by the defendant targeted at obstructing a bedrock function of the U.S. government, the nation’s process of collecting, counting, and certifying the results of the presidential election. The men and women of law enforcement who defended the U.S. Capitol on January 6 are heroes. They’re patriots, and they are the very best of us. They did not just defend a building or the people sheltering in it. They put their lives on the line to defend who we are as a country and as a people. They defended the very institutions and principles that define the United States.

Again, this is a wide-ranging public condemnation of the former president, in which Smith all but accuses the former president of insurrection and sedition, for which he was not charged. Indeed, the charges are based on the 1871 Ku Klux Klan law, the post-Enron statute, and a financial fraud law that is used mostly in cases where contractors and others swindle the federal government. 

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Exactly what information was presented to the grand jury and what did Smith tell the grand jurors when they were urged to charge the former president? Did Smith use arguments about insurrection and sedition to persuade the grand jurors to vote for these other charges? This is a critical point.  It appears that Smith played fast and loose with the law and the facts, which is does not meet the requirements for bringing charges that meet the probable cause standard.

The grand jury process is intended to protect an individual’s due process rights.  Indictments are to be brought by ordinary citizens sitting as jurors. The government is to provide the jurors with witnesses, information, and an explanation of the relevant law, so that the citizen jurors are making their decisions based on a true, accurate, and honest presentment.  When this process is violated by politically motivated prosecutors, as with Bragg and Willis, or a prosecutor with a long record of abusing the criminal justice system, as with Smith, it is especially important that the Fifth Amendment not be abused and violated, and used not to protect an individual but as a cudgel by the government intended to imprison their targets. 

It is relevant to note that all three prosecutors had the grand juries vote smack in the middle of a presidential election, and all have demanded trials within months of the indictments – that is, for maximum political damage to candidate Trump, and maximum political benefit to candidate Biden.  

The use of these grand juries, where there is obvious evidence of chicanery by these prosecutors, must be scrutinized at the front end of these various cases. Thus, the question I have is: Where the heck are the attorneys representing President Trump and the other defendants? Why do they seem so passive in the face of potential grand jury abuses and, frankly, other government misconduct? 

This juncture of the process is highly significant. In fact, the U.S. Supreme Court has held that once an indictment, the defendant loses any right to challenge the grand jury process, at least at the federal level, that once a trial is held on an indictment, the defendant loses any right to challenge the grand jury process.   

Mark Levin is host of FOX News Channel's (FNC) Life, Liberty & Levin (Sundays, 10-11 PM/ET). He joined the network in November 2017.